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WCLawyer, Attorney

Category: South Africa Law

Satisfied Customers: 15207

Experience: L.LB (UOVS)

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Hi. I got divorced in 2000 and my 2 children were 9 and 4 years

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Hi. I got divorced in 2000 and my 2 children were 9 and 4 years old respectively at the time. My son is now 22 and my daughter is turning 18 in February 2014. My divorce agreement states that I must pay maintenance for the "under age" children, but it does not specify until when I must pay. My question: When are children not "under age" anymore? Is it at the age of 18? Although my daughter turns 18, she will still be in school (Gr 12) in 2014. Can I stop paying maintenance when she turns 18?

Good day and thank you for your question. My name is XXXXX XXXXX I will try and assist you today.

In order to provide you with the most accurate answer, I may have to ask you a lot of questions. This may seem tedious and irrelevant, but trust me, there is a reason for every question. So please be patient throughout the process and if it takes a little long for me to come back to you, it is probably because I am researching your answer. I hope that is okay.

Does the divorce agreement say when your liability to pay maintenance in terms of the order stops?

I think that the term "under aged children" in the divorce agreement was probably just to identify the children that you are to pay maintenance for who were under aged at the time of the order. I don't think that it was intended to say that you are to pay as long as they are under aged, which is below the age of 18, by the way.

The South African Law says that parents are to pay maintenance to their children, proportional to their respective incomes, until the child becomes self sufficient. So, there is no set age at which you are allowed to stop maintenance.

A child becomes self sufficient when he/she is able to support himself/herself.

I don't know whether this is the case with the 22 year old, but it probably will not be the case with the 18 year old. So, you would probably have to continue to pay maintenance as per the order.

I am going to give you a general formula for how maintenance is calculated, which should simplify things a bit going forward.

The South African the common law with regards XXXXX XXXXX maintenance of children require that each parent support their children proportionate to their means. This basically means that, establishing the amount of maintenance that a parent is liable for, should be established following a three pronged process.

(a). Firstly, the needs of the child estate be established. This will typically include a roof over his head, food, schooling, medical costs etc. A child, that is used to a certain standard of living, can be expected to maintain that standard insofar as his parents can afford it. Note that, in this section, the personal expenses of the custodian parent should not be factored in. For instance, if they are to children that needs to be maintained and the rent of the house that they are living in is for instance, R 3000, it needs to be established which portion of that R3000 is for the custodian parent personally. Typically, assuming there are two children and one noncustodial parent, the amount of R 3000 will be divided into three and the R2000 that is left will be divided between the two parents as per the calculation in paragraph 2 below.

(b). Once the amount of maintenance has been established, you need to establish which part of that amount each parent is liable for. This is done right calculating the portion of a parent salary in comparison with the combined salary of both parents. For example; let's assume that the father earns R20,000 per month and the mother earns R10,000 per month. The father earns 66, 6% of the total combined salary and the mother earns 33, 3% of the total combined salary. Let's assume that the amount in 1. Equals R3000 per month. This would mean that the father would have to pay R2000 towards maintenance, and the mother needs to pay R1000 towards maintenance.

(c). The final step in establishing the amount of maintenance that a parent is liable for, would be affordability. The court will have a look at the finances of a parent to establish whether the parent can in fact afford, for instance, the R2000 in maintenance. You need to note, however, that the court will not allow the parent to maintain a luxurious lifestyle at the expense of the child. If the court find that the parent cannot afford the maintenance, the court will look whether the parent can exclude some luxurious expenses from his personal budget. If, after that, he still cannot afford the maintenance, the court will make some final adjustments to bring the amount of maintenance payable in line with what the parent can afford.

If the 22 year old is working, then his/her earnings must be set off against the maintenance needs and then taken from there.

If you want to have the maintenance reduced or suspended or uplifted, you would need to approach the Maintenance Court in the area where your children lives for such an application. They need to represent themselves now since they are older than 18, or get an attorney to represent them. So, if you apply for a reduction, you direct that application towards your kids.

I hope I have answered all of your questions and addressed all your concerns, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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